Dollar Bank Treasury Management Services
These General Terms and Conditions, any and all applicable Service Terms and Conditions and any agreements incorporated herein by reference including, without limitation, the Deposit Agreement (collectively, the “Treasury Management Services Agreement”) sets forth all of the terms and conditions under which Bank will provide certain Treasury Management Services to the Company. The Treasury Management Services Agreement forms a legally binding contract between Bank and the Company. By signing and returning a Treasury Management Services Sign Up Form, the Company hereby agrees to be bound by the terms and conditions of the Treasury Management Services Agreement. Bank may change the terms and conditions of the Treasury Management Services Agreement with or without prior notice to the Company from time-to-time. The Company agrees that any notice of a change may be posted to Bank’s website (including without limitation in the form of a “banner” message), sent to the Company by electronic message or United States Mail, or by any other means permitted by applicable law. Use of any of the Services after such notice of a change will constitute the Company’s agreement to be bound by the amended terms and conditions of the Treasury Management Services Agreement.
General Terms and Conditions
1. Definitions. In addition to the terms otherwise defined in these General Terms and Conditions, the following terms shall have the following meanings:
“Bank” shall mean Dollar Bank, Federal Savings Bank and any licensors, affiliate(s), agents, third party service providers, independent contractors and each such party’s successor and assigns, which may, from time to time, provide Service(s) for the Company.
“Banking Day” shall mean any day other than a Saturday, Sunday, or a day on which Bank is authorized or required to close according to applicable law.
“Company” shall mean the Company identified on the Treasury Management Services Sign Up Form.
“Deposit Agreement” shall mean the deposit account agreement in effect from time-to-time governing the Company’s deposit account with Bank.
“Service(s)” shall mean any treasury management services undertaken by Bank for the Company, including, but not limited to the following Services: CashANALYZER®, Zero Balance Account, Employer Payroll Card, Courier Connection, Remote Deposit, Escrow Management Account, Positive Pay, Electronic Business Bill Payment, Controlled Disbursement Corporate Card Display and Image Cash Letter.
“Service Terms and Conditions” shall mean any and all written Service Terms and Conditions (as the same may be amended from time-to-time) attached to and made a part of these General Terms and Conditions, which the Company, by using such Services, agrees are the terms and conditions under which Bank shall provide the Services to the Company.
“Service Instruction(s)” shall mean any instruction by Company that covers any of the Services being provided.
2. Agreement. Bank shall provide the Services to the Company subject to the terms and conditions set forth in these General Terms and Conditions and in any applicable Service Terms and Conditions. Any and all Service Terms and Conditions shall be incorporated into and shall be a part of these General Terms and Conditions; provided, however, that if there is any conflict between the terms of applicable Service Terms and Conditions and these General Terms and Conditions, the terms of the applicable Service Terms and Conditions shall be controlling. The Company also agrees to be bound by Bank’s Deposit Agreement applicable to deposit accounts, including any amendments or restatements which may be made from time to time at Bank’s discretion or as required by applicable law.
3. Service Documentation. Certain Services require documentation setting forth detailed information, procedures and forms for use and implementation prior to the Company’s use of such Services (“Documentation”). The Company will complete, execute and deliver to Bank such service Documentation, as Bank deems necessary. Bank will, in its sole discretion, determine the adequacy of such service Documentation and any Service Instruction(s), and may refuse to provide the Service(s) until acceptable Documentation and/or Service Instruction(s)s are received by Bank. The Company agrees promptly to notify Bank of any changes to any information presented in the Documentation.
4. Company’s Records and Media. Prior to the implementation of the Service(s), the Company agrees to provide to Bank all records and data processing media necessary to perform the Service(s). The records will be legible, correct, complete and in the format specified in the applicable Service Terms and Conditions and related Documentation. Checks will be MICR encoded according to Bank’s current specifications. Bank will, in its sole discretion, determine the adequacy of the information and the format in which it is submitted, and may refuse to provide the Service(s) until such information and/or format is deemed satisfactory. In addition, Bank’s performance under these General Terms and Conditions is subject to Bank’s receiving timely, accurate and complete data for each Service Instruction(s), in form and on media specified by Bank. If the Company does not meet any of these requirements, Bank shall:
- no longer be bound to deliver the applicable Services, and
- be authorized to deliver as complete and finished whatever portion of the Service(s) that can be performed with the data available.
5. Information and Property Provided in Connection with Performance of Service(s). All specifications, hardware, tokens, remote deposit scanners, transmissions, tapes, codes or other media, programs and procedures owned by Bank and used in connection with the performance of the Service(s), will be and remain the sole property of Bank and will not be modified or altered in any way, assigned or transferred, or used for any other purpose by the Company. The Company shall comply with the terms of all license and copyright notice requirements.
6. Company’s Duty to Inspect and Report. Bank shall supply the Company with periodic statements and notices and, as applicable, transaction confirmations for the Service(s) the Company uses. The Company must inspect all such statements, notices, confirmations and similar information pertaining to the Service(s) performed and, if there is a discrepancy, unauthorized transaction or error (“Error”) in any such material, notify Bank (i) within fourteen (14) days after receipt of a statement or notice containing or reflecting the Error, or (ii) by the next Banking Day after receipt of a transaction confirmation containing or reporting the Error. Except to the extent required by law, failure to notify Bank of errors within the aforementioned time periods will relieve Bank of any and all liability for any losses resulting from the Company’s failure to timely report the Error.
7. Limitation of Liability; Disclaimer of Warranties. Except to the extent required by law, Bank’s duties and liabilities will be limited to those set forth herein. Bank’s liability shall be limited to actual damages sustained by the Company and only to the extent such damages are a direct result of Bank’s willful misconduct or gross negligence. The liability of Bank in all these instances shall not exceed the recovery of funds erroneously processed or not processed. Bank shall not be liable for damages caused by any act or omission of any third party, whether or not such party was chosen by Bank, or for any charges imposed by any third party. IN NO EVENT SHALL BANK (OR ANY PARTY WITH WHOM BANK MAY BE CLAIMED TO BE JOINTLY LIABLE) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOST PROFITS (WHETHER OR NOT BANK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE), INCLUDING, BUT NOT LIMITED TO, SUCH LOSSES OR DAMAGE ARISING FROM SUBSEQUENT DISHONOR OR REJECTION OF ANY TRANSACTION (INCLUDING, WITHOUT LIMITATION, DISHONOR OF CHECKS OR OTHER ITEMS). Bank shall be relieved of liability where Bank performs any Service in accordance with any Service Instruction(s) or applicable Service Terms and Conditions, and Bank may rely on the accuracy of any information set forth in the Service Instruction(s) or applicable Service Terms and Conditions. The Company agrees that to the extent that Bank’s exercise of ordinary care may be an issue with respect to any claim, substantial compliance by Bank with Bank’s standard procedures for providing a Service shall be deemed to constitute an exercise of ordinary care.
Except for willful misconduct, Bank shall not be liable to the Company, its employees, officers, directors or agents for any losses, fees or damages incurred by the Company resulting from (a) Bank’s failure or refusal to process any Service Instruction(s) that is contrary to applicable laws, rules or regulations, incomplete, ambiguous or that is not in conformity with Bank’s requirements, (b) the Company's attempt to draw on, transfer or direct payment from uncollected funds or interest, if any, not yet credited to the Company's account, or (c) Bank's failure to process a stop payment, ACH or wire transfer of funds, bill payment or other request due to equipment failure or malfunction (including, without limitation, failure of communications or computer services or systems), acts or omissions of any third party or any cause beyond the reasonable control of Bank.
BANK HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH ANY OF THE SERVICES BANK MAY PROVIDE HEREUNDER.
NO THIRD PARTY SHALL HAVE ANY RIGHTS OR CLAIMS AGAINST BANK UNDER THESE GENERAL TERMS AND CONDITIONS.
8. Fees. The Company shall compensate Bank for Service(s) in accordance with Bank’s then applicable fee schedules and shall be liable for all taxes applicable to the Services. Bank may amend the fee schedules at any time and will give written notice to the Company of changes in fees for Service(s) then used by the Company.
9. Overdrafts; Funds Transfer; Set-off. In the event any actions by the Company should result in an overdraft in any of its accounts, the Company is responsible for repaying the overdraft immediately, without notice or demand, together with interest thereon at a rate determined in accordance with Bank’s fee schedules in effect from time to time. Nothing in these General Terms and Conditions shall be deemed to constitute a commitment by Bank to extend credit or grant overdraft privileges to the Company. If Bank credits any account of the Company with any funds transfer, such credit shall be provisional until Bank receives final credit for the funds transfer through a Federal Reserve Bank or other applicable payment system. If Bank does not receive final settlement or payment, the Company must refund to Bank the amount credited for the funds transfer and Bank may charge any account the Company may have with Bank for such amount. Without limiting the foregoing, Bank has the right, in addition to all other rights and remedies available to it, to set off, without demand or notice, the unpaid balance of any amount owed it in connection with the Service(s) against any debt or deposit owing to the Company by Bank or any affiliate, or property of the Company in Bank’s or affiliate’s possession or control.
10. Financial Condition and Credit Limits. The Company agrees to provide financial statements (the quality of which shall be determined by Bank) for any time period requested by Bank. The Company also authorizes Bank to obtain credit reports on the Company at any time. In the event Service(s) selected by the Company result in unacceptable credit exposures to Bank or affect the amount of capital required or expected to be maintained by Bank under any law, regulation, guideline, or request from any central bank or governmental authority; or if the Company fails to provide Bank with any credit, financial or other information Bank may require from time to time, Bank may, in its discretion, immediately cancel the Services contemplated herein, or limit the Company’s transaction volume or dollar amount.
11. Security Procedures. If the Service(s) are subject to security procedures, the Company shall select a security procedure from the options offered by Bank and shall name one or more authorized representatives to initiate transactions and act for the Company with respect to the Service(s). If Bank follows the security procedure the Company has chosen in acting on any Service Instruction(s) which Bank believes to be from the Company, (a) the Company shall be bound by such Service Instruction(s), whether or not the Company authorized such Service Instruction(s) and whether or not such Service Instruction(s) is suitable or “commercially reasonable” for the Company and (b) Bank shall be entitled to rely without investigation on any such Service Instruction(s). The Company agrees and understands that the security procedures are intended to confirm the authenticity of Service Instruction(s) and not to detect errors in the content of the Service Instruction(s) and Bank assumes no responsibility for detecting such errors. Bank shall have no responsibility to discover, audit or report to the Company any unauthorized disclosure or use of the security procedure or other breach of security by the Company, its agents, representatives or employees, or any third party, and all losses resulting therefrom shall be borne solely by the Company. The Company agrees that it shall be solely responsible to assure that such security procedures are followed, as they may be amended from time to time. If such procedures are violated, the Company agrees to promptly notify Bank of any such breach. The Company acknowledges that it has received and reviewed all applicable security options and procedures, has selected its preferred security procedure where applicable, and has determined that such procedures are commercially reasonable and suitable for the Company’s particular circumstances.
12. Indemnification. The Company shall defend, indemnify and hold Bank, its officers, directors, agents and employees harmless from any and all liabilities, losses, damages, costs, and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel) which may be incurred by Bank relating to or arising out of these General Terms and Conditions or any applicable Service Terms and Conditions, or arising out of the fault, misconduct or negligence of the Company, its employees or agents; provided, however, that Bank shall have no right to be indemnified hereunder for losses solely and directly related to its own willful misconduct or gross negligence.
13. Term. The term of these General Terms and Conditions shall commence on the date on which the Company's accounts have been activated for use of any Service. The Company's use of the Service(s) will remain in effect unless terminated pursuant to the provisions of these General Terms and Conditions.
In addition to its rights as set forth elsewhere in these General Terms and Conditions, Bank shall have the right to terminate these General Terms and Conditions or any or all of the Services immediately without notice to the Company upon: (a) violation or breach by the Company, its officers, employees or agents, of any provision of these General Terms and Conditions, any applicable Service Terms and Conditions or the Deposit Agreement; (b) the termination of the Company's business for whatever reason; (c) the voluntary or involuntary filing of a bankruptcy petition or similar proceeding under state law with respect to the Company; (d) the Company becoming or making an assignment for the benefit of creditors; (e) Bank being required to do so by any third party, law, regulation, treaty, guideline or directive; or (f) Bank reasonably deeming itself insecure with respect to the Company's performance of any of the terms, covenants and conditions contained herein and/or in any applicable Service Terms and Conditions hereto.
In the event of any breach by the Company under these General Terms and Conditions or any applicable Service Terms and Conditions, the Company agrees to pay, in addition to fees past due, all reasonable expenses incurred by Bank in enforcing these General Terms and Conditions or any applicable Service Terms and Conditions including, but not limited to, all expenses of any legal proceedings and all reasonable attorneys' fees incurred in connection with such legal proceedings.
Without restricting the foregoing, either party may cancel these General Terms and Conditions without cause upon thirty (30) days written notice to the other party. Termination, for whatever reason, will not affect the Company's responsibility for fees and other charges that accrue prior to termination.
In the event of any termination, all fees incurred under these General Terms and Conditions or any applicable Service Terms and Conditions so terminated shall become immediately due and payable.
14. Confidentiality. The Company shall not sell, transfer, publish, disclose, divulge, furnish, display or otherwise make available any portion of any document, program, data base, security codes, tokens, personal identification numbers or other information related to the Service(s) (“Confidential Information”) to others. The Company agrees to secure and protect access to the Confidential Information in a manner consistent with maintenance of Bank’s rights therein and take appropriate action by instruction to its employees to satisfy its obligation hereunder. The Company shall use its best efforts to assist Bank in identifying and preventing any unauthorized use of any Service, or any portions thereof. Without limiting the generality of the foregoing, the Company shall advise Bank immediately in the event the Company learns or has reason to believe that any person who has had access to the Confidential Information, or any portion thereof, has violated or intends to violate the terms of these General Terms and Conditions or any related non-disclosure agreement. Any breach or threatened breach of this Section will cause immediate irreparable injury to Bank and the Company agrees that injunctive relief, including preliminary injunctive relief and specific performance should be awarded as appropriate to remedy any such breach without limiting Bank’s right to other remedies available in the case of such a breach. The Company will, at its sole expense, cooperate with Bank in seeking injunctive or other equitable relief in the name of Bank or the Company against any third person. The Company agrees to maintain the confidentiality of any information regarding the non-public business affairs, property, method of operation, or other information relating to Bank, obtained by the Company during, prior or subsequent to the term of these General Terms and Conditions. The Company agrees that Bank owns all proprietary rights in all Confidential Information.
15. Third Parties. The Company acknowledges and agrees that Bank may provide the Services by itself or in combination with other licensors, affiliate(s), agents, third party service providers and/or independent contractors (as the same may change from time-to-time, the “Third Parties”). The Services are the property of Bank and the Third Parties and are protected by copyright and other intellectual property laws. The Services are licensed for the Company’s internal banking use only, and the Company acknowledges and agrees that all right, title and interest in and to the Services and the contents thereof shall remain solely the property of Bank and the Third Parties. Bank hereby grants to the Company a revocable, non-transferable, non-exclusive, limited license to use the Services solely as provided in the Treasury Management Services Agreement. The Company has no right to sell, assign, transfer, reproduce, distribute, create derivative works of, display, publish, license, divulge, or otherwise use the Services. The Company shall implement and maintain security measures with respect to the Services that effectively restrict access to the Services only to authorized users with a need to know, and protect the Services from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those the Company employs to safeguard its most confidential information. IN NO EVENT SHALL BANK OR ANY THIRD PARTY BE LIABLE TO THE COMPANY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR USE OF DATA (WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE) WITH RESPECT TO THE SERVICES. For any Service described herein utilizing the Internet, Bank and the Third Parties do not and cannot control the flow of data to or from Bank's and the Third Party’s networks and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by other parties. Accordingly, Bank and the Third Parties disclaim any and all liability resulting from or related to such events and in no event shall Bank or the Third Parties be liable for any damages (whether in contract or in tort) that are attributable to the public Internet infrastructure, the Company's ability to connect to the Internet, or Bank's or any Third Party’s ability to connect to the Internet on the Company's behalf.
16. Access to Services. One or more Services may at times be unavailable to the Company, either with or without prior notice, due to maintenance, security, factors beyond Bank’s reasonable control or other reasons. Bank shall have no responsibility for non-performance of one or more Service(s) caused by an event beyond its reasonable control, such as: action or inaction of governmental, civil or military authority; breakdown in communication facilities; fire; strike; lockout or other labor disputes; flood; war; riot; theft; earthquake; natural disaster; or default of common carrier or third-party vendors, suspension in payments by another financial institution, issuance or operation of any adverse governmental law, ruling, regulation, order or decree, or an emergency that prevents Bank from operating normally or other causes beyond the reasonable direct control of Bank. In such event, the Company shall be responsible for carrying out banking business through alternative channels.
17. Severability. If any provision of these General Terms and Conditions or any applicable Service Terms and Conditions shall be determined by a court of competent jurisdiction to be unenforceable, that provision shall be interpreted so as to achieve, as much as possible, the purposes intended by the original provision, and the remaining provisions of the applicable Service Terms and Conditions and these General Terms and Conditions shall continue intact.
18. Governing Law. The applicable Service Terms and Conditions and these General Terms and Conditions shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of laws provisions. Both parties agree that the sole jurisdiction and venue for any litigation arising out of these General Terms and Conditions or any applicable Service Terms and Conditions shall be an appropriate federal or state court located in Allegheny County, Pennsylvania; provided, however, any award, order or judgment may be entered and enforced in any court of competent jurisdiction. Both parties agree to service of process by United States Mail.
19. Complete Agreement. The parties agree that the applicable Service Terms and Conditions and these General Terms and Conditions constitute the complete and exclusive expression of the terms of these General Terms and Conditions between the parties regarding the Service(s) and the matters covered hereunder.
20. Independent Contractor. The Company agrees that in performing the Service(s) hereunder, Bank will be acting as an independent contractor and not as an employer, employee, partner, or agent of the Company.
21. Amendments. Bank may amend these General Terms and Conditions and any applicable Service Terms and Conditions at any time with or without notice to the Company.
22. Assignment. These General Terms and Conditions and applicable Service Terms and Conditions shall not be assigned or otherwise transferred by the Company without the prior written consent of Bank.
23. Authorization. The Company warrants and represents on the date hereof and on any date any Service is performed, (a) that the Company is duly organized, validly existing, and in good standing in the jurisdiction in which it is organized; (b) that there are no provisions of any law, or any formation or governing documents, or any agreement of any kind, nature or description binding upon the Company which prohibits the Company from entering into or performing under these General Terms and Conditions and applicable Service Terms and Conditions; (c) that the Company’s execution and performance of these General Terms and Conditions and applicable Service Terms and Conditions has been duly authorized; and (d) that these General Terms and Conditions and applicable Service Terms and Conditions are binding obligations of the Company.
24. Waiver. Failure of a party to insist upon strict adherence to any term of these General Terms and Conditions and applicable Service Terms and Conditions on any occasion shall not deprive the forbearing party of the right thereafter to insist on strict adherence to that term or any other term in these General Terms and Conditions and applicable Service Terms and Conditions. Any waiver of a breach shall not be construed as a waiver of any subsequent breach, whether or not similar.
25. Notices. All notices required to be given hereunder or under any Service Terms and Conditions shall be effective when received if hand delivered or sent by fax, or when deposited in the United States Mail, first class postage prepaid, and addressed (i) to Bank at 2700 Liberty Avenue, Pittsburgh, PA 15222, Attn: Treasury Management, (ii) to the Company at the address specified in the Treasury Management Services Sign Up Form, or (ii) or to such other address as either party shall have specified in writing to the other.
26. Limitation of Action. No action, regardless of form, arising out of these General Terms and Conditions and applicable Service Terms and Conditions may be brought by either party more than two (2) years from the date the cause of action arose, with the exception of Bank’s rights in the copyrighted, patented or trademarked property.
27. Survival. All provisions of these General Terms and Conditions and applicable Service Terms and Conditions relating to confidentiality, non-disclosure, indemnity and fees and charges shall survive the termination or expiration of these General Terms and Conditions and applicable Service Terms and Conditions.
28. Waiver of Jury Trial. BOTH THE COMPANY AND BANK HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER THE COMPANY OR BANK AGAINST THE OTHER.
29. Additional Terms and Conditions. It is agreed that all transactions will be performed in a manner consistent with any Service Instruction(s), and shall be subject to the existing Deposit Agreement of Bank as well as any amendments thereto hereafter made.